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Home EJIL Analysis Submissions to the UK Iraq Inquiry on the Legality of the Iraq War (Updated)

Submissions to the UK Iraq Inquiry on the Legality of the Iraq War (Updated)

Published on October 1, 2010        Author: 

As reported here, this summer the UK’s inquiry into the Iraq War (the Chilcott Inquiry) invited submissions analysing the arguments relied on by the UK government as the legal basis for the war. The deadline for making those submissions was extended from July to September 13. The inquiry reserved the right to publish submissions made to it. However, it is now nearly 3 weeks since that deadline passed and the Inquiry has not yet published any of the submissions. The other evidence given to the committee of inquiry is available on its website and one important contribution of the inquiry is the declassification and release of many documents which were previously confidential. As has been discussed on this blog before (see  here here, and here) many of those documents give fascinating insight into the process by which the government sought and received legal advice relating to the use of force. It would be anamalous if the inquiry fails to publish evidence received from international lawyers on this critical issue  and I suspect that they will be published in some form at some point.

An article in the Guardian newspaper yesterday states that over 30 submissions were received by the inquiry on the legal arguments. The article (“Blair’s case for Iraq invasion was self-serving, lawyers tell Chilcot inquiry”) begins by stating that:

“The Blair government undermined the UN, bowed to US political pressure and relied on self-serving arguments to justify its decision to invade Iraq, according to evidence to the Chilcot inquiry by international lawyers.

A key theme of the evidence, yet to be published, is that the government weakened the UN, damaging the country’s reputation in the process . . .”

The article quotes from submissions made by Ralph Zacklin (former UN Assistant-Secretary General for  Legal Affairs), by Philippe Sands and from submissions drafted by Marko Milanovic and I. The submission drafted by Marko and I was signed by 23 international lawyers from academia and private practice. The full text of that submission can be found below the fold. (UPDATE: You can find all three submissions referred to on the Guardian website here)

Given that the Inquiry made it clear that submissions were to be restricted to 3000 words we had to make choices as to the issues we wished to comment on. We decided not to attempt to revisit in full the against the use of force but did make the argument the argument put forward by the US and UK regarding the revival of previously given authorizations to use force undermines the UN collective security system. Our main focus, however, was on the arguments put forward by Lord Goldsmith (in his testimony to the committee) to justify the change in his legal advice. In our view, those arguments, even assuming that the UK’s revival argument was valid, UN Security Council Resolution 1441 would fail to satisfy that argument. In thinking that it did, Lord Goldsmith was moving from the UK’s revival argument to the US’ version of the argument which (as Lord Goldsmith himself accepted) was fundamentally different from the UK’s and which had been regarded even by the UK as an untenable legal position.

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Submission to the Inquiry on the UK’s Legal Justification for the Iraq War and Lord Goldsmith’s Legal Advice

Introduction

 1. We would like to take this opportunity to respond to the Inquiry’s call for submissions from public international lawyers regarding various matters raised during the Inquiry’s proceedings. In this submission, we focus on two issues: (i) the validity of the so-called revival argument as a justification for the use of force in Iraq; and (ii) on the justification that Lord Goldsmith gave to the Inquiry for his change of heart in his legal advice to the Government in the advent of the Iraq War. As the Inquiry is well aware, Lord Goldsmith initially advised that United Nations Security Council Resolution (UNSCR) 1441 was insufficient to revive the UNSCR 678 authorization to use force, only to argue the opposite in his final advice immediately before the invasion. Our submission will deal with the legal and logical consistency of Lord Goldsmith’s own argument, as given in his testimony before the Inquiry and in his memoranda to the Government.

 2. According to Lord Goldsmith, his change of position was the result of his combined discussions with Sir Jeremy Greenstock, Jack Straw, and US legal advisors in Washington, who were all intimately involved in the drafting of UNSCR 1441. Their account of the drafting history, which he took into consideration, was that the United States officials who took part in the drafting of the resolution had a so-called ‘red line:’ because the US already thought that it had implied UNSC authorization to act and did not need UNSCR 1441 for that purpose, it would have never allowed the adoption of this resolution if its terms held or implied that a further UNSC decision would be needed for the invasion to take place. Because the American negotiators were far too skilled to have allowed such a limitation to be inserted into the resolution, it would have been highly improbable that this would have happened. Hence, Lord Goldsmith now thought that the better view was that the Resolution did not require a further decision, implicitly or otherwise, and that the revival of the prior authorization could properly take place.

 3. Several objections to this line of argument immediately become apparent. In his questioning of Lord Goldsmith at the Inquiry, Sir Roderick Lyne rightly pointed out that this argument presumes that the American negotiators could not have failed in their endeavours and that other parties did not have their own ‘red lines.’ Likewise, as Sir Michael Wood testified before the Inquiry, it is inappropriate to rely so much on essentially private accounts of the drafting history, rather than on the officially recorded public statements made by various state representatives in Council after the adoption of UNSCR 1441. These are all valid criticisms – but in our view there is also a more subtle non sequitur here.

The two varieties of the revival argument

4. We fully understand that the Inquiry is not interested in other countries’ justification for their use of force. Nonetheless, as we will show, Lord Goldsmith’s argument is structured precisely in such a way that a comparison between the UK and the US justifications is logically inevitable. Assessing the consistency of Lord Goldsmith’s argument, however, requires nothing more than acknowledging the difference between the US and the UK positions, and accepting his own view that it is the UK, rather than the US position which is the correct statement of the law.

5. To see how Lord Goldsmith’s argument is inconsistent we first need to elaborate on the two basic varieties of the so-called revival argument. First, there is the US version: UNSCR 678 authorized the use of force; UNSCR 687 suspended it by a cease-fire, but did not terminate it. If Iraq is in material breach of the obligations imposed on it by UNSCR 687, UNSCR 678 can be reactivated. Crucially, the US position is that the existence of a material breach is an objective fact: the determination of whether a material breach exists or not, and what the consequences of such a breach should be, is a matter for individual states, and is not exclusive to the Security Council. The United States could determine that Iraq was in material breach, and could engage in hostilities without any further ado.[i]

 6. The US argument is highly problematic. It ignores the basic idea of the UN system, which is one of collective security, not one of unilateral decision-making. It relegates the Security Council to nothing more than a passive spectator once it has authorized the use of force, even though more than ten years have passed after that authorization and the war that it brought about ended.

 7. The UK variation of the revival argument tries to address some of these concerns by being a bit less blunt. Rather than saying that the existence of a material breach is a question of objective fact capable of determination by any individual state, the UK position was that this determination must be made collectively by the Security Council.[ii] However, according to the UK, the Council need not do anything other than that for the authorization to use force to be revived – the finding of a breach is enough, and no explicit reauthorization is necessary.

 8. These are thus the two varieties of the revival argument – the extreme US one, and the more moderate, ‘revival plus’, of the UK. Though they are similar, the differences between them are quite significant. Crucially, bearing this in mind, it was the UK, not the US, which needed UNSCR 1441 in order for the Council to determine a material breach and for the prior authorization to be revived. Within the framework of its own legal position, all the US needed in the negotiations was for the Council not to say that further action, subject to a veto, would be needed before force could be used against Iraq. Of course, explicit authorization would have been preferable, but the US did not consider it necessary.

The invalidity of the revival argument

 9. The preliminary and most fundamental question is of course whether either the stronger US or the weaker UK revival argument has any validity in international law. It is obviously the UK version which is more acceptable since it takes into at least some account the foundations of the UN regime of collective security. But even the UK version is objectionable since the decision to use force against a sovereign state is so monumental and can lead to such grave consequences for human lives, security and property that it can only be taken explicitly by the Security Council, whose members would thereby assume political responsibility for their actions. Indeed, Lord Goldsmith acknowledged as much, stating that the ‘revival argument is controversial, and was not widely accepted among academic commentators.’[iii] With regard to revival under UNSCR 1441 in particular, he thought that though a ‘reasonable case’ could be made for it, this ‘does not mean that if the matter ever came before a court I would be confident that the court would agree with this view.’[iv]

10.  The revival argument is unacceptable because it assumes that a prior authorization to use force may be used many years after it was given for purposes which were never contemplated at the time when that authorization was given. Moreover, it would be for individual States to determine that a use of force was appropriate to achieve those purposes, even if unrelated to the purposes for which authorization was originally given. Such an interpretation of the UN Charter departs from the object and purposes of that treaty. The purposes of the UN are stated in Article 1 of the Charter where it is made clear that Organization in maintaining international peace and security will “take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace.” The revival argument undermines this collective security system by suggesting that not only may measures be taken on an individual basis, but the measures and their goal can also be individually determined, as long as are somehow related to a prior authorization given by the Council in completely different circumstances.

11.  Furthermore, the revival argument is based on an outdated, pre UN Charter, view of the law of armed conflict: the view that a ceasefire or armistice only suspends, but does not terminate, hostilities and that a serious breach of the agreement could lead to resumption of hostilities by the other side. As has been noted by Christopher Greenwood (now Judge at the International Court of Justice):

“The changes in the law regarding resort to force brought about by the adoption of the UN Charter have had a particular effect on the right of the parties to resume hostilities after the conclusion of an armistice or ceasefire of indefinite duration. Whereas the law once admitted there was a general right to resume hostilities (Article 36 Hague Reg), today it would be a violation of Article 2(4) for a state to resume hostilities unless the behaviour of the other party to the armistice or ceasefire amounted to an armed attack or the threat of an armed attack.”[v]

In any event, treating UNSCR 687 as a temporary cessation of hostilities as opposed to a definitive termination is erroneous since that resolution bears all the hallmarks of a general conclusion of a peace and it was UNSCR 686 that was the temporary ceasefire which looked forward to definitive termination achieved in UNSCR 687.

12.  Since the revival argument is flawed, even in its weaker variant, the invasion of Iraq would have been unlawful no matter what UNSCR 1441 says when properly interpreted, because it does not on any account provide for an explicit authorization.

How does UNSCR 1441 fit in with the UK’s revival argument?

13.  However, even if the UK’s version of the revival argument were valid, UNSCR 1441 would not have provided a basis for the invasion of Iraq. For the purposes of the analysis to follow, we accept arguendo the UK’s weaker version of the revival argument as the correct statement of the jus ad bellum and then ask whether the terms of UNSCR 1441 satisfy it.

14.  If all the resolution did was to say that Iraq was in material breach, and that serious consequences will follow from that, as it did in op. paras. 1 & 13 , then  the resolution would indeed satisfy the logic of the UK’s revival argument. But this of course is not all that UNSCR 1441 said, since op. para. 2 gave Iraq ‘one final opportunity’ to comply; op. para 4 stated that Iraq’s further material breaches ‘will be reported to the Council for assessment;’ while in op. para. 12 the Council decided ‘to convene immediately upon receipt of a report in accordance with paragraphs 4 or 11 above, in order to consider the situation and the need for full compliance with all of the relevant Council resolutions in order to secure international peace and security.’

15.  What is to be made of these provisions, particularly op. paras. 2, 4 and 12, and the official statements by several Council members that the Resolution allows for ‘no automaticity’?[vi] Lord Goldsmith himself acknowledged that the Council created a two-stage process – UNSCR 1441 would not have revived the prior authorization immediately, but only once Iraq failed to take advantage of the final opportunity given to it for compliance. The question is what the second stage of this process should be, and only two answers are possible: (1) either the Council should have done no more than meet, discuss and ‘consider’ (but not ‘decide’ on) Iraq’s non-compliance without taking any further action, and the authorization would thereby have been revived; or (2) the Council needed to adopt a decision which would have stated the consequences of Iraq’s non-compliance.[vii]

16.  The FCO legal advisors and Lord Goldsmith up until his 7 March opinion both thought that the right answer to this question was (2).[viii] But then Lord Goldsmith changed his mind. The reason he gave for doing so was that the UK and US negotiators during the drafting of Resolution 1441 persuaded him that the Resolution did not in any way cross the US ‘red line’, i.e. that it did not implicitly or explicitly require further authorization for the use of force against Iraq. Thus he stated in his opinion that:

‘having regard to the information on the negotiating history which I have been given and to the arguments of the US Administration which I heard in Washington, I accept that a reasonable case can be made that resolution 1441 is capable in principle of reviving the authorisation in 678 without a further resolution.’[ix]

17.  At the Inquiry he likewise stated that he:

‘was told by the State Department legal adviser, the only red line that the negotiators had was that they must not concede a further decision of the Security Council because they took the view they could move in any event. … if they had agreed a decision which said the Security Council must decide, they would have then lost that freedom.’[x]

and that ‘[t]hey were all very, very clear that was the most important point to them and that they hadn’t conceded that.’[xi]

The structure of Lord Goldsmith’s argument, and the non sequitur within

18.  Lord Goldsmith’s argument thus works like this: (1) the text of UNSCR 1441 is ambiguous and supports both readings (i.e. that all the Council had to do was to meet and ‘consider’ Iraq’s non-compliance, or that it had to adopt a further decision); (2) the US had a red line – that UNSCR 1441 could not impose a requirement for a further decision that would modify the authority they already thought they had; (3) the US negotiators were very capable and smart, and it is unlikely in the extreme that they conceded their red line; (4) therefore, UNSCR 1441 imposed no requirement for a further decision, and the prior authorization was revived. In our view, greater issues of law aside, this argument is logically flawed and based on a non sequitur. Points (1)-(2) are certainly true; (3) is probably, but not necessarily, true; however, (4) does not follow from (3).

19.  We think it reasonably clear that the US managed to avoid any limitation in the resolution on its supposed pre-existing authority. Nothing in UNSCR 1441 is like, say, op. para. 8 of UNSCR 1696 (‘Expresses its intention, in the event that Iran has not by that date complied with this resolution, then to adopt appropriate measures under Article 41 of Chapter VII of the Charter of the United Nations to persuade Iran to comply with this resolution and the requirements of the IAEA, and underlines that further decisions will be required should such additional measures be necessary’) or op. para. 16 of UNSCR 1718 with regard to North Korea (‘Underlines that further decisions will be required, should additional measures be necessary’). It can be quite reasonably said that UNSCR 1441 is essentially neutral on any pre-existing authority to use force.

20.  However, the fact that the Americans were successful in achieving their objectives does not mean that on the UK’s version of the revival argument, which based itself on UNSCR 1441, there was no further requirement for the Council to make a decision on Iraqi non-compliance.

21.  The determination by the Council in operative paragraph 1 of UNSCR 1441 that Iraq was in material breach of its obligations under relevant SC resolutions would, on its own, under the UK’s revival argument, have provided a sufficient basis for the use of force against Iraq. However, the Council immediately in paragraph 2 made it clear that Iraq was to be given a final opportunity to comply with its obligations.

22.  On the US view of the revival argument the commission of a material breach is an objective fact determinable by any State. On the UK view a material breach does not in and of itself provide authorization to use force. It is a Council determination that such a breach has occurred which provides that authorization. And because paragraph 2 effectively cancelled-out the determination made in paragraph 1, the success of the UK revival argument was to be determined solely by the relationship between paragraphs 4 and 12 of the resolution.

23.  By relying so heavily on the views of the US negotiators in interpreting UNSCR 1441, Lord Goldsmith shifted his perspective from the UK revival argument to the US one. The fact that paragraph 12 of UNSCR 1441 is neutral on any authorization to use force that was supposedly already revived only worked for the US, but did not satisfy the demands of the UK’s revival argument. The US negotiators may have been successful in achieving their red line. However, this tell us nothing about whether action pursuant to UNSCR 1441 itself required a further Council decision. This is because on the US view it already had the authority to use force regardless of UNSCR 1441. However, Lord Goldsmith himself actually does not believe so, and neither does anybody else.

24.  Lord Goldsmith was fully aware of this fundamental difference between the US and the UK revival arguments and of its implications. In his 7 March opinion he says that he has:

‘considered whether this difference in the underlying legal view means that the effect of the resolution might be different for the US than for the UK, but I have concluded that it does not affect the position. If OP12 of the resolution, properly interpreted, were to mean that a further Council decision was required before force was authorised, this would constrain the US just as much as the UK. It was therefore an essential negotiating point for the US that the resolution should not concede the need for a second resolution. They are convinced that they succeeded.[xii]

25.  The reasoning that US success is necessarily success for the UK is in our view false. Let us assume that instead of being vague as it was, op. para. 12 explicitly said that a further Council decision was necessary for action pursuant to op. para. 4 of UNSCR 1441. This would undoubtedly have failed to satisfy the UK’s revival argument. But even this very explicit formulation would not have been incompatible with the US revival argument, because it would not have affected the authority that the US thought it had independently of UNSCR 1441. There is nothing contradictory in saying that the resolution did not affect the authority that the US already had before it was adopted, and in saying that action pursuant to UNSCR 1441 itself and its finding of a material breach would indeed require a further decision by the Council. US success simply does not equal a UK one, as unlike the UK, the US did not need the resolution to revive anything – all it wanted was for the resolution not to prohibit the use of force against Iraq, which it admittedly did not do.

Conclusion

26.  Our analysis has shown that (i) the revival argument relied on by the UK is an untenable interpretation of the UN Charter which would have destabilising effects for the UN collective security system; and (ii) even assuming that the UK’s revival argument was valid, UNSCR 1441 would fail to satisfy that argument and accordingly Lord Goldsmith’s change of position was unjustified.

 Submission by:

  1. Dapo Akande, University Lecturer in Public International Law, Co-Director, Oxford Institute for Ethics, Law and Armed Conflict, University of Oxford & Yamani Fellow, St Peter’s College, Oxford.
  2. Marko Milanovic, Lecturer, University of Nottingham School of Law; LL.M (Michigan), PhD cand. (Cambridge); formerly law clerk to Judge Thomas Buergenthal, International Court of Justice
  3. Ralph Wilde, Reader, Faculty of Laws, University College London
  4. John Merills, Emeritus Professor of International Law, Sheffield University
  5. Robert Cryer, Professor & Head of School, University of Birmingham Law School
  6. Colin Warbrick, formerly Professor of International Law, Universities of Birmingham and Durham
  7. Douglas Guilfoyle, Lecturer, Faculty of Laws, University College London
  8. Micaela Frulli, Assistant Professor of Law, University of Florence
  9. Karel Wellens, Professor, Radboud University
  10. Aurel Sari, Lecturer, School of Law, University of Exeter
  11. Zeray Yihdego, Senior Lecturer, School of Social Sciences and Law, Oxford Brookes University
  12. Joshua Castellino, Professor & Head of Law Department, Middlesex University
  13. Sangeeta Shah, Lecturer, School of Law, University of Nottingham
  14. Kate Grady, University of Bristol
  15. Katherine Barry, Solicitor
  16.  Anne Crossfield, Barrister
  17. Eric Fripp, Barrister, Mitre House Chambers
  18. Elimma Ezeani, Lecturer in Law, Robert Gordon University
  19. Carla, Buckley, Human Rights Law Centre, University of Nottingham.
  20. Ardeshir Atai, Institute of Advanced Legal Studies, University of London
  21. Gordon Glass, Director, Global Leadership Ltd
  22. Toby Fenwick
  23. Alexander Moldow

[i] See, in that regard, the following two memoranda produced by the Office of Legal Counsel (OLC) within the US Department of Justice, which serves a similar role of the official government legal advisor in the US as the Attorney-General and the Law Officers do in the UK: Authority of the President under Domestic and International Law to Use Military Force Against Iraq, 23 October 2002, available at http://www.justice.gov/olc/2002/iraq-opinion-final.pdf;  Effect of a Recent United Nations Security Council Resolution on the Authority of the President under International Law to Use Military Force Against Iraq, 8 November 2002, available at http://www.justice.gov/olc/2002/iraq-unscr-final.pdf.

[ii] See, e.g., Lord Goldsmith’s memorandum to the Prime Minister on UNSCR 1441, 7 March 2003, para. 9.

[iii] Ibid., para. 10.

[iv] Ibid., para. 30.

[v] Chapter 2, in Fleck (ed.), The Handbook of International Humanitarian Law, (2nd ed., 2008),  p. 68.

[vi] See UN Doc. S/PV.4644, 8 November 2002.

[vii] See Lord Goldsmith’s memorandum of 7 March 2003, paras. 13-14.

[viii] See Lord Goldsmith’s draft advice to the Prime Minister of 14 January and 12 February 2003.

[ix] Ibid., para. 28.

[x] Iraq Inquiry hearing transcript, 27 January 2010, p. 87.

[xi] Ibid., p. 111; see also pp. 128, 241, 242.

[xii] Lord Goldsmith’s memorandum of 7 March 2003, para. 22.

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2 Responses

  1. Judge Weeramantry made a similar argument in his book Armageddon Or Brave New World (sorry for the extended quote):

    “The vast amount of diplomatic activity resulting from the lack of specific authorisation of force, the fluctuating array of changing circumstances and the universally agreed necessity for specific UN authorisation of force in the context of the particular circumstances of today are not considered in this Opinion. It is moreover totally silent on the core principles and considerations of international law that provide the necessary background to any adequate interpretation of the particular phraseology of the resolutions. These become particularly essential if the Opinion is to be a solid basis on which to take a great nation into war in this nuclear age, particularly in a volatile region of the world where no prediction can be ventured regarding the manifold ramifications of hostilities once commenced.
    Seeing that the decision to use armed force is probably the most onerous and solemn of any decisions which the Security Council can ever be called upon to make, this Opinion calls for closer examination. Not surprisingly, Lord Goodhart, in opening the debate in the House of Lords on the legality of war on the day the Opinion was released, described it as “”a highly questionable conclusion, which is based on a dubious interpretation of deliberately ambiguous wording.”
    Among the principles and concerns which clearly needed consideration are the following:

    1. the general principle that the Security Council and not individual members is the master of the interpretation of its resolutions;
    2. the general principle that the use of force needs specific and particular authorisation by the Security Council;
    3. the considerable lapse of time since the adoption of Resolution 678, the principal resolution relied on;
    4. that changing circumstances and events in the intervening 12 years necessitated a variety of specific measures and resolutions individually designed to deal with these various situations;
    5. that the purpose of Resolution 678, namely, the use of force in the context of the expulsion of Iraq from Kuwait, was achieved, whereupon basic rules of interpretation would indicate that the authority granted for this purpose lapsed;
    6. that a blanket authorisation to use force for twelve years would have been furthest from the intentions and the practice of the Security Council when it passed Res¬olution 678 in 1990;
    7. the common understanding of all members of the Concil (which the UK itself shared) at the time of Resolution 1441 that a specific resolution authorising force was nec¬essary;
    8. the travaux preparatoires leading to the adoption of Resolution 1441 which reveal that it was the clear understanding of parties to it that it did not automatically permit the use of force;
    9. the express statement by the Ambassadors of both the UK and the US when Resolution 1441 was adopted that it contained no automaticity;
    10. the very clear pronouncements by China, Russia and France and other signatories at the time of the Resolution that it was on that basis alone that they were party to it;
    11. the inconsistency involved in inducing signatures on that basic understanding and then going back upon that understanding;
    12. that the use of force which is now contemplated is not for the ejection of Iraq from Kuwait but for the totally different purpose of eliminating weapons of mass destruction;
    13. that the phraseology used in 1441, namely “serious consequences” was deliberately chosen in rejection of phraseology suggested by the US and UK which directly authorised the use of force;
    14. paragraph 12 of Resolution 1441 expressly stated that should there be any further material breach, the Council will meet again to consider the situation – a far cry from the assumption that a 13 year old resolution would govern such a situation;
    15. in the context of a fast moving and volatile situation such as that of Iraq and of an intervening period of 13 years during which several supervening resolutions were adopted, the view that an earlier resolution remains in force and can automatically be revived is both unreasonable and unwarranted – and least of all can that latent applicability and its later revival be inferred when what is sought to be revived is the right to use force.
    16. in its applicability to the current situation Resolution 1441 clearly superseded all prior resolutions including 678, 687 and others;
    17. that a vague expression like “serious consequences” needs to be given specificity in regard to the use of force if it is to be so construed, a construction which only the Security Council has authority to make;
    18. that Resolution 678 is the only resolution which authorised the use of force;
    19. that Resolution 678 is merely recited in the preambular portion of Resolution 1441 but that the authority to use force nowhere appears in the operative part of Resolution 1441;
    20. that before Resolution 1441 there was a clear understanding on the part of all Security Council members that a further resolution other than the 12 year old Resolution 678 was necessary in order to permit the use of force and hence followed the enormous efforts to get such an authorisation in 1441;
    21. that after Resolution 1441, which did not authorise the use of force, there was likewise a clear understanding of the need for a further resolution specifically authorising the use of force if force was to be used;
    22. the acquiescence of the US and the UK in that general understanding;
    23. that it was the very inapplicability of a spent resolution of 12 years ago that was the driving force behind the urge to obtain a specific authorisation through Resolution 1441 and when that failed through a succeeding resolution;
    24. that when a phrase like “serious consequences” is used it is only the Security Council that can interpret this language and extend it to include a specific authorisation to use force;
    25. that unlike Resolution 678, Resolution 687 is a very detailed resolution arranged in 9 parts and running to 34 sections and that none of these contain a provision which the Attorney General’s Opinion reads into it, keeping alive the authority to use force conferred by Resolution 678, although had that been the intention, it could easily and clearly have so stated;
    26. that the phrase “in the area” used in Resolution 687 is vague and covers an undefined and vast area which could mean Iraq, Iraq and Kuwait, Iraq and any of its neighbours or indeed the entire Middle East. If it is argued that this resolution revived the right to use force it is inconceivable that the Security Council could have intended to authorise the use of force without a more specific definition of the area in which it was to be used;
    27. nowhere did 687 specifically authorise the use of force or specifically revive the use of force stipulated in 678;
    28. that not one of the resolutions passed by the UN authorises the violent overthrow of a sovereign state or the use of force outside the UN Charter;
    29. that disarmament and regime change are two vastly different concepts and objectives which attract vastly different principles of international law;
    30. that all previous resolutions put together and inteipreted in today’s context do not amount to an authorisation to use force;
    31. that in Security Council parlance phrases like “any necessary means” are required to authorise the use of
    force;
    32. that the cardinal Charter principle which outlaws the use of force in the absence of actual or imminent attack needs clear and unambiguous language to override it;
    33. that the resort to war is so contrary to the central objectives and spirit of the UN Charter and so contrary to the normal methodology of UN operations, that an intention to invoke it in any given circumstances needs to be categorically stated rather than left to speculation, uncertainty, and doubtful inference;
    34. the procedure indicated in the resolution was still in the process of implementation and was yielding results at the time when the resort to hostilities brought it to an end. thus resulting in non-fulfilment of and non-compliance with the cardinal principle that force is to be used only as a last resort and that all other means of resolving the matter should first be exhausted.
    35. that the principle against the unilateral use of force would amount to ius cogens, i.e. a bedrock principle of international law which even Congresses or Parliaments cannot override;
    36. that the burden of proof that force has been authorised lies heavily on the party or parties seeking to use force and that such proof needs to be absolutely clear and unambiguous;
    These are considerations that arise in regard to the narrow question of interpretation of the relevant Resolutions. An opinion regarding the seminal issues of war and peace on the basis of which a major national decision is taken needs also to be set against the major principles of international law which provide the backdrop to that opinion and to the principles of interpretation on which it is based. These principles, all of which are relevant to the interpretation of these resolutions, are the general prohibition of the use of force, the prohibition of pre¬emptive strikes, the limitation of self defence to actual or imminent attack, the mandatory duty to exhaust all possible avenues of peaceful resolution specified in Article 33 of the Charter (some of which have not even been tried) the principle of the equality of states, the principle of consistency in the application of international law, the desirability of the equal application to all states, including the US and the UK of the principle of prohibition of weapons of mass destruction…”, p.36-41

  2. Umberto

    A made a very similar argument in my dissertation and I am glad there are many respected academics who maintain the same view.